Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 34 No. 3, January 18, 2008 issue of the Florida Administrative Weekly.
61A-1.0101 Product Displays Exception.
(1) Industry members Manufacturers and distributors may give, loan, or sell alcoholic beverage product displays to vendors, for use on a vendor’s licensed premises, to include wine racks, bins, barrels, casks, shelving, or similar product display items which are separated from a vendor’s ordinary shelves and used primarily to hold and display factory sealed products of the provider for sale to customers at room temperature or cold. Such displays shall not have, or be used to provide, a any secondary function, other than advertising, which would such as that function to provided by equipment, including refrigeration; furniture; or other fixtures.
(2) Industry members Manufacturers and distributors may transport, install, assemble and disassemble their own product displays on a vendor’s licensed premises. Industry members may require the vendor to purchase a minimum amount of the product advertised on the display in a quantity necessary for the completion of the display.
(3) The value of any product display, excluding transportation, installation, and disassembly costs, shall not exceed $300 per brand, and the total value of all product displays at any one time on any one vendor’s licensed premises shall not exceed $300 per brand. Industry members Manufacturers and distributors shall not pool or combine dollar limitations in order to provide a vendor a product display valued in excess of $300 per brand.
(4) The product display shall bear product or industry member information that is conspicuous and permanently inscribed or securely affixed to the product display. The vendor’s name, business name, website address, logo, and address may be part of the product display.
(5) Payments of slotting fees for alcoholic beverages shall not be made to vendors. A slotting fee is defined as any form of assistance given by an industry member manufacturer or distributor to a vendor to purchase or rent additional, particular, favorable, or dedicated display, shelf, cooler, storage or warehouse space for alcoholic beverages.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01010 Expendable Retailer Advertising Specialties Exception.
(1) When the specialties advertise wine or spirituous beverages, wine or spirituous beverages industry members manufacturers and distributors of wine or spirits may give or sell, and when the specialties advertise malt beverages, malt beverages industry members manufacturers and distributors of malt beverages may sell, at a cost not less than the actual cost of the industry member who purchased them, expendable retailer advertising specialties of nominal value such as coasters; paper, plastic or styrofoam cups; foam scrapers; placemats; back bar mats; menu cards; meal checks; paper napkins; trays; thermometers; alcoholic beverage lists; and similar specialties. Alcoholic beverage lists, menus, and menu cards shall not contain any information other than advertising, alcoholic beverages, and prices. If a manufacturer or distributor provides a vendor with glassware, pitchers, carafes or similar containers made of other materials, such containers are not expendable retailer advertising specialties, and shall be sold at a cost not less than the actual cost of the industry member who purchased them.
(2) The specialties may advertise a brand or industry member. The vendor’s name, business name, website address, logo, and business address may be printed on these specialties items, which shall be intended for use by the vendor or consumers on the vendor’s licensed premises.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01011 Durable Retailer Advertising Specialties Exception.
When the specialties advertise malt beverages, manufacturers and distributors of malt beverages may sell, at a cost not less than the actual cost of the industry member who purchased them, without limitation in total value of such specialties provided to a vendor, durable retailer advertising specialties including pool table lights, mirrors, clocks, calendars, and similar specialties bearing substantial advertising material. Durable retailer advertising specialties have a secondary value or purpose, which makes them more than inside signs, but shall not include product displays, equipment, furnishings, or furniture. If the durable retailer advertising specialties are loaned or rented, then the manufacturer or distributor may service such specialties. Such specialties shall only be intended for use on a vendor’s licensed premises.
(1) Durable retailer advertising specialties shall bear permanently inscribed, substantial advertising intended to promote the brand or industry member being advertised, and differ from inside signs in that they have a secondary function. Such secondary function is limited to passive functions only, such as providing illumination, reflection, the time, the date, or similar limited functions.
(a) Durable retailer advertising specialties include pool table lights, picnic-table umbrellas, mirrors, clocks, calendars and similar specialties.
(b) Durable retailer advertising specialties do not include, product displays, equipment (refrigerators, grills), furniture (tables, chairs), other furnishings (wallpaper, deck awnings), or other fixtures (sinks, dishwashers) and similar items which exceed the passive function limitation. Additional examples of items that are not durable retailer advertising specialties are entertainment equipment (televisions, radios, computers), sports equipment (footballs, soccer goals), amusement or leisure equipment (table games, dart boards) and recreational equipment (tents, bicycles, canoes).
(2) Wine or spirituous beverages industry members may give or sell durable retailer advertising specialties to a vendor, for use only on a vendor’s licensed premises, when such specialties advertise wine or spirituous beverages.
(3) Malt beverages industry members may rent, loan or sell durable retailer advertising specialties to a vendor, for use only on vendor’s licensed premises, when such specialties advertise malt beverages.
(a) When an industry member sells such specialties to a vendor it shall be at a cost not less than the actual cost of the industry member who purchased them.
(b) Without limitation in total value, such specialties may be loaned or rented without charge for an indefinite duration and the industry member may maintain and service such specialties.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01012 Consumer Advertising Specialties Exception.
(1) When the specialties advertise wine or spirituous beverages, wine or spirituous beverages industry members manufacturers and distributors of wine or spirits may give or sell to a vendor consumer advertising specialties of nominal value bearing substantial brand or industry member advertising designed to be carried away by the consumer, including trading stamps, nonalcoholic mixers, pouring racks, ashtrays, bottle or can openers, cork screws, shopping bags, matches, printed recipes, pamphlets, cards, leaflets, blotters, post cards, pencils, T-shirts, caps, visors, and similar specialties.
(2) When the specialties advertise malt beverages, malt beverage industry members manufacturers and distributors of malt beverages may sell to a vendor consumer advertising specialties of nominal value bearing substantial brand advertising designed to be carried away by the consumer, including trading stamps, nonalcoholic mixers, pouring racks, ashtrays, bottle or can openers, cork screws, shopping bags, matches, printed recipes, pamphlets, cards, leaflets, blotters, post cards, pencils, T-shirts, caps, visors, and similar specialties to vendors at no less than the actual cost of the industry member who initially purchased them, unless the manufacturer or distributor gives the items directly to consumers on the vendor’s licensed premises.
(3) Industry members Manufacturers and distributors shall not provide assistance to a vendor for allowing the industry member manufacturer or distributor to give specialties directly to consumers on the vendor’s licensed premises.
(4) The vendor’s name, business name, website address, logo, and business address may be printed on these specialties items.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New _______.
61A-1.01013 Inside Signs Advertising Brands Exception.
(1) Industry members Manufacturers and distributors may give, sell, lend, or furnish inside signs advertising brands to vendors such as neon or electric signs, window painting and decalcomanias, posters, placards, and other advertising material authorized by Sections 561.42(1), (11), and (12), F.S., to be displayed or used in the interior of a vendor’s licensed premises. The signs must advertise brands sold by the vendor.
(2) The signs may include the vendor’s name, business name, website address, logo and business address; however, identification of vendors shall be relatively inconspicuous in relation to the entire advertisement. The only additional information permitted on the sign is price or a space for the price of the alcoholic beverage product advertised on the signs.
(3) Vendors shall not have more than one neon or electric sign per manufacturer’s brand in its window or windows.
(4) Items that provide a secondary function, such as providing the time, the date, reflection, or reading light, shall be considered durable retailer advertising specialties.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01014 Brand Images.
(1) Industry members A manufacturer or distributor may provide to any vendors without conditions copy-ready images of alcoholic beverage brands, brand logos, industry member logos, responsibility messages, or products in any format.
(2) “Copy-ready” images are those images ready to be reproduced for immediate use in advertising.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01015 Advertising Vendor Locations Where Brand Sold Exception.
(1) If an advertisement includes two or more unaffiliated vendors, industry members manufacturers and distributors may use vendors’ names and addresses in brand advertisements to indicate vendors from whom consumers can purchase the advertised brands. Unaffiliated vendors are those vendors not affiliated through having common ownership, being members of the same pool buying group, or being members of the same advertising cooperative. The advertisement shall identify vendors relatively inconspicuously in relation to the entire advertisement. Such advertising is not considered cooperative advertising as long as no vendor shares in the cost of the advertising.
(2) Industry members Manufacturers and distributors shall not underwrite any vendor’s publications or events through the purchase of advertising or sponsorships.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01018 Trade Shows and Conventions Exception.
(1) Industry members Manufacturers and distributors may participate in non-profit vendor association trade shows and conventions. Participation may include:
(a) Displaying products;
(b) Renting display space at normal trade show rates;
(c) Paying normal registration fees;
(d) Purchasing tickets to functions;
(e) Providing samples to attendees;
(f) Conducting tastings for attendees;
(g) Providing hospitality independent of sponsored activities by the association or any member vendors; and
(h) Purchasing advertisements in publications distributed during conventions and trade shows. Payments for all such advertisements shall not exceed $300 per year to any non-profit vendor association.
(2) Industry members A malt beverage manufacturer or distributor may provide any expendable retailer advertising specialties, durable retailer advertising specialties, or consumer advertising specialties to a non-profit vendor association. Where the specialties advertise malt beverages, Ssuch specialties may only be provided pursuant to the conditions and limitations of Rules 61A-1.01010, 61A-1.01011, and 61A-1.01012, F.A.C.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0102 Private Labels.
(1) Beer, wine, and spirituous liquors may be manufactured under a vendor’s trademark. The vendor may be the exclusive outlet for the product if the vendor maintains ownership of the trademark. The vendor shall not set the price of private label products with the manufacturer or distributor. Pricing shall be independently established by the manufacturer and the distributor.
(2) When a vendor’s business name is the same as the brand name, the vendor may display an outside sign so long as the purpose of the sign is clearly to promote the business name and not the alcoholic beverage brand.
(3) The vendor may be paid royalties and other contractual payments if the right to the trademark is sold by the vendor.
Rulemaking Authority 561.11, 561.42, 563.045(4), 564.045(6), 565.095(6) FS. Law Implemented 561.08, 561.42 563.045(1), 564.045(5), 565.095(5) FS. History–New________.
61A-1.01021 Split or Mixed Cases Exception.
Distributors may offer a split or mixed case containing more than one brand or more than one size of the same brand of alcoholic beverage to vendors. Distributors must have, and uniformly follow, a written policy applying to all vendors if an add-on fee is charged for any split or mixed cases.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01022 Combination Packages.
Industry members Manufacturers and distributors may package and distributors may offer and sell to vendors, non-alcoholic beverages or products combined packaged with alcoholic beverages in an integrated package that is ready for sale to the consumer.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.01024 Alcoholic Beverage Samples Exception.
(1) A distributor may give a sample of distilled spirituous beverages spirits, wine, or malt beverages to a vendor if that vendor has not purchased the brand or received a sample of the brand within the preceding twelve months. However, if ownership of a distributor or vendor is transferred to a new entity, the distributor is eligible to give, and the vendor is eligible to receive, new samples.
(2) Samples of malt beverages shall not exceed three gallons per brand to each licensed premises; samples of wine shall not exceed three liters per brand to each licensed premises; and samples of spirituous beverages spirits shall not exceed three liters per brand to each licensed premises.
(3) If a particular product is not available in a size within the quantity limitations of this section, a distributor may furnish to a vendor the next larger size.
(4) Any withdrawal of tax paid samples from the inventory of a distributor as permitted herein must be substantiated by an invoice to a licensed vendor. The invoice shall include:
(a) Distributor’s name and address.
(b) Date invoice was prepared.
(c) Identification of the product as a sample.
(d) Identification of salesman.
(e) Name and address and license number of the vendor.
(f) Brand name.
(g) Number of containers and size of containers used in sampling.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0103 Consumer Premium Offers Exception.
(1) Premium offer means value-added merchandise, travel, or services held out to consumers in exchange for their purchase of an alcoholic product, sometimes referred to as “product gift” or “gift with sales promotion.”
(2) Industry members Manufacturers and distributors may furnish premium offers on products to consumers with proof of purchase and may provide vendors with point-of-sale advertising and order forms.
(3) The pPremium offers shall be made available to all vendors who wish to participate. The premium offers shall be offered in quantities reasonably calculated to accommodate the individual vendor’s level of sales during the promotion period. The premium offers shall not be placed on any vendor’s licensed premises for display.
(4) The vendor’s name, business name, website address, logo, and business address may be printed on these premiums items.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0104 Consumer Sweepstakes, Drawings, or Contests Exception.
(1) Industry members Manufacturers and distributors may provide entry forms, rules, advertising materials, and a box or other similar container in which to collect completed entry forms to vendors. These advertising materials must be offered to all vendors who wish to participate in quantities reasonably calculated to accommodate the individual vendor’s level of sales during the promotion period. The prize or giveaway shall not be placed on any vendor’s licensed premises for display.
(2) Sweepstakes, drawings, and contests shall not require proof of purchase to enter and shall be open for the general public to participate; however, no vendor or vendor’s employee or agent shall be eligible to participate or win. A means of entry may be provided with a purchased alcoholic beverage, so long as an alternative means of entry not requiring a purchase is made available.
(3) Vendors shall not collect completed entry forms, and the selection of winners shall not occur at a vendor’s place of business. Any completed entry forms deposited on the vendor’s licensed premises shall be collected by the industry member manufacturer or distributor. Live or electronic contests sponsored by industry members manufacturers or distributors shall not be held at a vendor’s place of business.
Rulemaking authority 561.11 FS. Law Implemented 561.08, 561.42 FS, History–New________.
61A-1.0105 Vendor’s Property Included in Contests or Sweepstakes Exception.
(1) Industry members Manufacturers and distributors may administer consumer contests and sweepstakes that include a vendor’s property as the prize. However, the contest or sweepstakes shall not be a joint venture with a vendor. Any contest or sweepstakes prizes purchased by the industry member manufacturer or distributor shall be purchased at a cost which is not more than the cost charged to the general public. Any room rental fee paid by the industry member manufacturer or distributor to the vendor shall be no more than the vendor’s normal rate.
(2) Industry members Manufacturers and distributors may use the names and pictures of the vendor’s properties related to prizes awarded to consumers. Any reference to a vendor, other than the identification of the specific property included in the contest or sweepstakes, shall be relatively inconspicuous in relation to the total advertisement or entry form.
Rulemaking Authority 561.11 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0106 Vendor-Sponsored Tournaments Exception.
Industry members Manufacturers and distributors may participate in vendor-sponsored tournaments and contests but must pay no more than normal entry fees. Industry members Manufacturers and distributors shall not advertise, co-sponsor, underwrite, or contribute in time, money, gifts or provide any other assistance prohibited by Section 561.42(1), F.S.
Rulemaking authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0107 Returns of Damaged Products.
(1) Vendors who make a request for return of may return damaged products to distributors. Vendors shall notify distributors of damaged products received from the distributor within fifteen ten days after delivery may receive in order to obtain a credit or exchange of product, cash, or a credit against outstanding indebtedness. Products are damaged if they exhibit product deterioration, leaking containers, damaged labels or missing or mutilated tamper evident closures. Damaged products shall be verified by the distributor’s representative prior to issuing a credit or exchange. Damaged products shall be exchanged in exact quantities with products of near or equal value made by the same manufacturer and in the same size containers unless a credit or cash is issued at the time of the return with supporting documentation. Products damaged by vendors or vendors’ customers shall not be returned to the distributor for cash, credit or exchange and will be the vendor’s liability.
(2) Distributors shall maintain records of vendor requests for return of damaged products with reference made to the original invoice showing the delivery date and any credit memo issued. Distributors shall make and keep a transaction record of all exchanges detailing the date, the licensed vendor, business name and address, the vendor’s license number, and the product exchanged for products, cash, or credit.
(3) No return of the product shall be permitted if the vendor’s request is made more than fifteen ten days after the delivery date, except in the following circumstances: unless the division has granted permission on DBPR form 4000A-015, Application to Return Alcoholic Beverages, incorporated herein by reference and effective_______. This form may be obtained from the Department’s website at http://www.myflorida.com/dbpr/abt/index.html.
(a) Recall. When a manufacturer has issued a product recall that affects multiple unaffiliated vendors, as defined in Rule 61A-1.01015, F.A.C., the recalled product may be returned for exchange, cash, or credit as provided in subsection (1) of this rule.
(b) Product Deterioration. When a product has deteriorated due to manufacturing or packaging problems, the product may be returned for exchange, cash, or credit as provided in subsection (1) of this rule. No product may be returned due to deterioration that could have occurred because of vendor conduct; because of any event that occurred on the vendor’s premises; or because of any event that occurred after the product was transferred to the vendor.
(4) If product is returned in excess of fifteen days after receipt using the exception listed in paragraph (3)(a) of this rule, documentation of the recall must be maintained with the record made by the distributor pursuant to subsection (1) of this rule. If product is returned in excess of fifteen days after receipt using the exception listed in paragraph (3)(b) of this rule, the product must be inspected and verified by the distributor and the division prior to the return. Documentation of the verification must be added to the record made by the distributor pursuant to subsection (1) of this rule. All records must be made available to the division upon request.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.
61A-1.0108 Returns of Undamaged Products.
(1) Distributors shall not make consignment sales to vendors. Vendors who make a request for return of undamaged products within ten five days after delivery may receive shall be entitled to cash or a credit against outstanding indebtedness within ten days after the request and at the same time the distributor picks up the products. Distributors must make and keep a transaction record of all exchanges detailing the request, the date, the licensed vendor, business name and address, the vendor’s license number, and the product returned for cash, or credit. The distributor shall document the request on the credit or refund memo. The five-day requirement excludes days that either the vendor or the distributor are closed for business.
(2) No return of the product shall be permitted if the vendor’s request is made more than ten five days after the delivery date, except in the following circumstances: unless the division has granted permission on DBPR form 4000A-015, Application to Return Alcoholic Beverages, incorporated herein by reference and effective__________.
(a) Products which may no longer be lawfully sold. Any situation where, due to a change in regulation or administrative procedure over which the vendor or employee/agent of the vendor has no control, i.e. a particular brand or size is no longer permitted to be sold, may be corrected through return of the product for cash or credit against outstanding indebtedness.
(b) Termination of business. Any time a vendor terminates operations products on hand at the time of termination may be returned for cash or credit against outstanding indebtedness. This does not include a temporary seasonal shutdown.
(c) Change in product. Any time a vendor’s inventory of product has been changed in formula, proof, label, or container, the product may be returned for equal quantities of the new version of the product. This does not include the return or exchange of products for which there is only a limited or seasonal demand, such as holiday decanters and certain distinctive bottles.
(d) Discontinued products. Any time the production or importation of a product is discontinued, a vendor’s inventory of the discontinued product may be returned for cash or credit against outstanding indebtedness.
(e) Seasonal dealers. Any time a vendor who is only open for a portion of the year, has product remaining at closure that will spoil in the off-season, those products may be returned for cash or credit against existing indebtedness.
(3) If product is returned in excess of ten days after receipt using the exceptions listed in paragraphs (2)(a) through (e) of this rule, documentation of the qualifying event must be maintained with the record made by the distributor pursuant to subsection (1) of this rule. All records must be made available to the division upon request.
(4) Distributors shall not make consignment sales to vendors. Vendors shall not attempt the return or exchange of product because the product is overstocked or slow-moving.
Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.